With the end of the Cold War constitution making became the dominant process in both conflict resolution and political change in nations across the globe. This raises an important question. Is constitution-making predominantly a process of design in which the choices made will determine the future of a particular polity or does a constitution-making process merely reflect the consolidation of a process of social transformation that is already underway? To explore this relationship, between social transformation and constitution-making this chapter adopts two strategies. First, it will consider the underlying assumption that constitution-making is an act of rational design. While understanding that the drafting of a constitution serves to design a system of power and governance, the chapter argues that the social context in which these processes proceed overshadow any single conception of rational design. Instead, it suggests there is a continuing relationship between the drafting of a formal constitutional document and the underlying material constitution, reflecting processes of social transformation through path dependency, negotiation, participation and the shaping of constitutional imaginations. Second, the chapter relies upon a close examination of constitution-making in South Africa’s democratic transition to demonstrate these various processes.
Abstract: This chapter explores the impact of context in shaping the role of cross-national jurisprudence in national courts and politics. A key element for understanding how context might shape the reception of ‘foreign’ jurisprudence in any jurisdiction is the idea of constitutional identity which articulates the relationship between culture, political economy and law. Through this lens the chapter explores how cross-national jurisprudence is applied in different jurisdictions, at times as a model in support of local developments and at other times as an anti-model explaining why particular claims or arguments are unsuited to the local context. This exploration aspires to build a theory of how cross-national jurisprudence has been shaped by specific judicial and national contexts as well as how different theories that explain how constitutional ideas travel might relate to the use of these rules and ideas in national courts. If the transnational movement of constitutional ideas is recognized, a theory of cross-national jurisprudence provides an additional means of understanding the role of foreign case law in domestic courts. This theory posits that it is through the domestic courts understanding of their own constitutional identity that they translate, apply and hybridize cross-national jurisprudence. A theory of cross-national jurisprudence aspires to add another dimension to our understanding of how constitutional ideas travel.
During the second half of the twentieth century a notable shift occurred in the balance of formal legal power between legislators and judges across the globe. This expansion of judicial power was identified and critiqued as a “judicialization of politics” or described as the emergence of a “juristocracy”. While acknowledging this trend, this Chapter argues that a New Legal Realist approach, which combines the acknowledgment of increased judicial power with an understanding of the inherent institutional limitations of courts as well as an empirical understanding of historical developments that undergirded this rise in judicial power, might provide a more nuanced view of judicialization. Finally, the chapter concludes that given the recent rise of populism and authoritarian politics around the world there is no guarantee that any shift in power is permanent. This perspective thus questions the notion of a simply expanding juristocracy.
Alexandra Huneeus and Heinz Klug
There is no self-described New Legal Realist movement within Latin American and African academies. Yet legal scholarship from these regions abounds with examples of work that performs the two most essential components of New Legal Realism: 1) it steps beyond law’s self-description as neutral and self-contained so as to examine its relationship to social and political phenomena; and 2) it employs the questions, theories, and methods of the social sciences to do so. This chapter provides a bird’s-eye view of some of this NLR-friendly scholarship from Latin America and Africa in recent decades, with an eye to how it could move and inform today’s NLR scholars. Using transformative constitutionalism as an example of a concept developed in the global south, it argues that scholars based in the global north should take seriously the theories and questions emerging from these two regions, and allow them to reshape their own thinking.
Shauhin Talesh, Elizabeth Mertz and Heinz Klug
This introductory chapter shows the distinctive qualities of New Legal Realism (NLR), captures where it stands around its fifteenth anniversary, and explains the goal of the larger book. In doing so, we demonstrate NLR’s fruitful continuation of the legal realist adventure as it reaches beyond historical and national boundaries to form new international conversations, based heavily on law-and-society networks and traditions. In addition, we provide a contrast to Empirical Legal Studies, because the NLR project clearly visible in this volume does not just use quantitative methods to study lawyers and legal institutions as they have been traditionally viewed. Instead, it includes chapters by social scientists and law professors using social science theory and multiple methods to understand law and address legal problems - across an impressive variety of subject areas such as immigration, policing, globalization, legal education, and access to justice. Finally, it offers a series of chapters from scholars - across an array of law and social science disciplines - explaining what particular disciplinary approaches offer to the process of translating law and empirical research. Overall, this volume highlights the powerful virtues of new legal realist research and an appreciation and awareness of the challenges of translation between social science and law.